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PETITIONER: RAJENDRA AND TWO OTHERS

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT18/07/1991

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. AHMADI, A.M. (J) RAMASWAMI, V. (J) II

CITATION:  1991 AIR 1757            1991 SCR  (3)  96  1991 SCC  (3) 620        JT 1991 (3)   288  1991 SCALE  (2)105

ACT:     Prevention of Food Adulteration Act, 1954/Prevention  of Food Adulteration Rules, 1955: S. 7 r/w s. 16, s.  13(2)/rr. 7(3), 9A:--Food adulteration--Food article found  adulterat- ed---Delay  in analysis report --Local Health Authority  not sending ‘immediately after prosecution’ the report to appel- lants  Acquittal by trial Magistrate--High Court  recomputed the  period  and  found the report  sent  within  prescribed period--Order  of  conviction and six  months’  imprisonment with fine awarded to each appellant--Validity of.     Non-compliance  of r. 9-A not fatal--Word  ‘immediately’ interpreted to convey ’reasonable despatch and promptitude’.     Partnership  concern:  Food  adulteration--Food  article sold by shopkeeper found adulterated--Alleged partnership of three brothers-Burden of proof of partnership on the  prose- cution--benefit of doubt given to remaining two appellants.

HEADNOTE:     Appellant  No. 1 was found exhibiting and  offering  for sale tea dust. P.W. 1, the Food Inspector purchased tea dust in  the  requisite quantity for test. Appellant no.  1  told P.W. 1 that the shop which was being run by him was a  part- nership  concern of the three brothersappellant no. 1 to  3. On  receipt  of  Public Analyst’s  report,  prosecution  was lanuched  against the appellants under s. 7 read with s.  16 of the Prevention of Food Adulteration Act, 1954.     Before the trial Magistrate the facts regarding sale  by appellant no.1 of the food article and the same being  adul- terated as reported by the Public Analyst were not disputed. The  appellants however, argued that the Public Analyst  did not  send the report within the period prescribed  under  r. 7(3)  Prevention  of Food Adulteration Rules, 1955  and  the Local  Health  Authority  did not forward the  copy  of  the result of the analysis to the appellants ’immediately’ after institution of the prosecution as envisaged by r. 9A.  Since there was a delay of nearly a month on that count, the trial Magistrate viewed this lapse as fatal to the prosecution. He also  held  that in the covering letter  while  sending  the report, it was not mentioned that the appellants had a right to  have  analysed  the second sample by  the  Central  Food

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Laboratory in terms of s. 13(2) of the 96 97 Act. He, therefore, acquitted the appellants.     On  appeal  by the State, the High  Court  reversed  the order  of  acquittal. It convicted the appellants  and  sen- tenced each of them to six months’ rigorous imprisonment and to  pay  a fine of Rs.5000 each.  Aggrieved  the  appellants preferred the appeal by special leave to this Court.     On consideration of evidence regarding guilt of all  the appellants and requirements of s. 13(2) of the Prevention of Food  Adulteration  Act,  1954 and rr. 7(3) and  9A  of  the Prevention of Food Adulteration Rules, 1955, Disposing of the appeal, this Court,     HELD:  1.  In the instant case, there was  no  basis  to sustain the conviction of appellants no. 2 and 3. There  was no  evidence  worth  the name to  conclusively  prove  their complicity beyond reasonable doubt. The only case set up  by the prosecution against these appeliants was that  appellant no.  1 was alleged to have told the Food Inspector that  the shop was being run in partnership by him with his these  two brothers. Appellant no. 1 alone made the sale in question to the  Food Inspector. Burden was on the prosecution to  prove the existence of partnership. Even if the Food Inspector  is believed  that  appellant no. 1 told him that the  shop  was being  run  in partnership, that per he was  not  enough  to inculpate  the  remaining  two  appellants  without  further evidence.  There  is  an area of doubt in  this  sphere  and extending  the  same  to appellants no. 2 and  3,  they  are acquitted. [100G-H; 101A-B]     The  case  of  first appellant stood  singled  out.  His conviction was well deserved, which should be maintained and the  sentence confirmed. However, fine was to be reduced  to Rs.1,000. [101C]     2. The expression ’immediately’ in r. 9A of the  Preven- tion of Food Adulteration Rules, 1955, is intended to convey a sense of continuity rather than urgency. What must be done is to forward the report at the earliest opportunity, so  as to  facilitate the exercise of the statutory right under  s. 13(2)  in  good and sufficient time before  the  prosecution commences  leading evidence. Non-compliance with r.  9-A  is not fatal. It is a question of prejudice. The word  ’immedi- ately’ was to be interpreted to convey ’reasonable  despatch and  promptitude’ intending to convey a sense of  continuity rather  than  urgency. The High Court was right  in  holding that failure to send instantly a copy of the analysis 98 report to the appellants was of no consequence. [100A-F]        Tulsiram  v.  State of Madhya Pradesh, [1984]  4  SCC 487, relied on.     3. On the question of compliance of r. 7(3) in regard to the period of submission of the report by Public Analyst  to the  Local  Health Authority, the High  Court’s  conclusion, reached  by it after recomputing the period, that such  duty was performed within the prescribed period was a finding  of fact  and  nothing was addressed before this Court  in  that regard. [99G-H; 100A]

JUDGMENT:     CRIMINAL  APPELLATE  JURISDICTION: Criminal  Appeal  No. 168of 1991.     From the Judgment and Order dated 26.7.1989 of the Madya Pradesh High Court in Crl. A. No. 102 of 1984.

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G.L. Sanghi and A.K. Sanghi for the Appellants. U.N. Bachawat and Uma Nath Singh for the Respondent The Judgment of the Court was delivered by           PUNCHHI,  J-  This  appeal  by  special  leave  is against  the judgment and order of the Indore Bench  of  the Madhya  Pradesh High Court rendered in Criminal  Appeal  No. 102 of 1984.      The  facts  are  few and simple.  The  first  appellant Rajendra, on 30th June, 1982, while running a shop under the name and style of M/s. Kumarvad Bros. in Khargaon Municipal- ity,  was found exhibiting and offering for sale  tea  dust, the quantity of which was about 11/2 kgs. D.P. Nath, P.W. 1, the  Food Inspector for Khargaon purchased tea dust  in  the requisite  quantity  for test. The purchased tea  was  dealt with  in the prescribed manner as per rules on the  subject. The purchase and other attendant documents were witnessed by Madan, P’W’ 2 and another.        The Public Analyst, Bhopal, to whom one of the  three samples was  sent  for analysis opined that the  food  article  fell below  the prescribed standard as its contents were  present in quantities not within the prescribed limits of variabili- ty. The report of the Public Analyst was communicated to the first  appellant as well as to his two brothers, the  second and third appellants, because it appears that at the time of 99 the  sale of the tea to the Food Inspector, he was  told  by the first appellants that the court’s intervention could  be sought  to  have  one of three  brothers.  The  accompanying covering letter suggested to the appellants that the court’s intervention could be sought to have one of the samples kept by  the Local Health Authority examined one more  time.  The appellants  did not avail of the opportunity and  faced  the prosecution launched under section 7 read with section 16 of the  Prevention  of Food Adulteration Act, 1954  before  the Chief Judicial Magistrate, Khargaon.     Before the Trial Magistrate the facts as alleged by  the prosecution  regarding  sale by the first appellant  to  the Food Inspector and of the article of food being  adulterated as  per  report  of the Public Analyst  were  not  disputed. Shelter,  however, was taken behind the provisions of  Rules 7(3)  and 9-A of the Prevention of Food Adulteration  Rules, 1955,  as then standing, whereunder the Public  Analyst  was required  to send his report to the Local  Health  Authority within 45 days, which he had not done, and the Local  Health Authority  was required to ’immediately’ after the  institu- tion  of  prosecution forward a copy of the  report  of  the result of the analysis to the appellants. Since there was  a delay  of nearly a month on that count the Trial  Magistrate viewed this lapse as total to the prosecution.  Furthermore, the  Trial  Magistrate took the view that  in  the  covering letter while sending the report, nowhere had the  appellants been  told that they had a right to have the  second  sample with the Local Health Authority analysed by the Central Food Laboratory  in terms of section 13(2) of the Act. The  Trial Magistrate perhaps had in mind that had this been mentioned, the  appellants may have chosen to avail of the  opportunity of  the  analysis by the Central Food  Laboratory  and  such report  would have superseded the report of the Public  Ana- lyst,  whether for or against the appellants. On  these  two grounds  the learned Trial Magistrate recorded acquittal  of the  appellants.  The High Court on appeal by the  State  of Madhya Pradesh, reversed the Order of acquittal and recorded conviction of the appellants add sentenced each one of  them to  six months’ rigorous imprisonment and to pay a  fine  of

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Rs.5000 each. This has occasioned the appeal before us.     Our  attention  was brought to the aforesaid  rules  and section  13(2) of the Act and the case law on  the  subject. Rule  7(3) requires that the Public Analyst shall  within  a period of 45 days of the receipt of any sample for analysis, deliver  to  the  Local Health Authority, a  report  of  the result  of such analysis in Form III. The  Trial  Magistrate found  that this duty was not discharged by the Public  Ana- lyst within 100 the  prescribed period of 45 days. The High Court,  however, recomputed  the period and came to the conclusion that  such duty was performed within the prescribed period. That  find- ing  is one of fact and nothing has been addressed to us  in that  regard.  So far as the Local  Health  Authority  being required to ’immediately’ after the institution of  prosecu- tion send a copy of the report of the result of the analysis in  Form III, its failure to do so instantly was held to  be of  no consequence, relying on a judgment of this  Court  in Tulsiram v. State of Madhya Pradesh, [1984] 4 SCC 487 where- in the word ’immediately’ was interpreted to convey ’reason- able  despatch and promptitude’ intending to convey a  sense of continuity rather than urgency. This Court then ruled  at page 497 as follows:               "The  real  question is, was the  Public  Ana-               lyst’s report sent to the accused sufficiently               early to enable him to properly defend himself               by giving him an opportunity at the outset  to               apply to the court to send one of the  samples               to  the Central Food Laboratory for  analysis.               If after receiving the Public Analyst’s report               he never sought to apply to the court to  have               the sample sent to the Central food  Laborato-               ry,  as  in the present case, he  may  not  be               heard to complain of the delay in the  receipt               of the report by him, unless, of course, he is               able  to establish some other  prejudice.  Our               conclusions on this question are: The  expres-               sion ’immediately’ in Rule 9-A is intended  to               convey  a  sense  of  continuity  rather  than               urgency.  What must be done is to forward  the               report  at the earliest opportunity, so as  to               facilitate the exercise of the statutory right               under  section  13(2) in good  and  sufficient               time before the prosecution commences  leading               evidence. Non-compliance with Rule 9-A is  not               fatal. It is a question of prejudice." Tulsirarn’s  case was thus a complete answer to the  conten- tion to contrary.     The next question which requires consideration is wheth- er  all  the appellants are guilty of the  crime.  From  the material  available on the record, we find no basis to  sus- tain  the conviction of the second and third appellants,  Om Prakash and Subhash. There is no evidence worth the name  to conclusively prove their complicity beyond reasonable doubt. The first appellant is alleged to have told the Food Inspec- tor on the date of sale of tea dust that the shop was  being run  in partnership by him with his two brothers.  This  was the only case set up by 101 the  prosecution at the trial. No evidence was  gathered  or tendered  to prove the partnership. On the facts, which  are eloquent,  the  first appellant alone made the sale  of  tea dust  to the Food Inspector and not all. Burden was  on  the prosecution to prove the existence of the partnership. We do

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not propose to indulge in the refinery of civil law but have to adopt the cautious approach to adjudge criminality of the accused  appellants. Even it the Food Inspector is  believed that the first appellant told him that ’the business on  the shop was being run in partnership that per he was not enough to  inculpate the remaining two appellants  without  further evidence’.  We  find  an area of doubt in  this  sphere  and extending the same to the second and third appellants  order their  acquittal. They be discharged from their bail  bonds. Fine, if paid, be refunded to them.     The case of the first appellant stands singled out.  His conviction  was  well deserved which  is  hereby  maintained confirming  the  sentence of imprisonment but  reducing  the fine  to  Rs. 1000, in default of payment of  which  further rigorous  imprisonment  for one month is ordered.  He  shall surrender  to his bail bonds. The excess fine, if  paid,  be refunded to the first appellant.     As  a result the appeal of appellants 2 & 3  is  allowed and  that of appellant no. 1 dismissed, subject, however  to the reduction of sentence. R.P.                                           Appeal   dis- posed of. 102